The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s response to a Subject Access Request. This is because the Information Commissioner’s Office is the appropriate body to deal with the complaint.
The complaint
The complainant, whom I shall refer to as Mr X, complains the Council has not responded to his Subject Access Request (SAR).
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6)) We normally expect someone to refer the matter to the Information Commissioner’s Office (ICO) if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended) The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
I considered information provided by the complainant and the Ombudsman’s Assessment Code.
My assessment
Mr X has already complained to the ICO about the Council not responding to his SAR. The ICO upheld Mr X’s complaint. It said it had asked the Council to send Mr X the information he had asked for. It said that if Mr X was not happy with the Council’s response, he should first complain to the Council. He could then contact the ICO. It also said Mr X could go to court to force the Council to disclose the information he wants. Mr X says the Council has still not responded to his request.
I understand Mr X’s frustrations, but we will not investigate his complaint. This is because the ICO is the UK’s independent authority set up to uphold information rights. It promotes openness by public bodies and protects the privacy of individuals. It deals with complaints about public authorities’ failures to comply with data protection legislation. This includes failing to disclose information somebody is entitled to.
Where someone has a complaint about access to information, the Ombudsman usually expects them to bring the matter to the attention of the ICO. This is because the ICO is in a better position than the Ombudsman to consider such complaints.
If Mr X complains to the Council and it again fails to respond to his request for information, then he should go back to the ICO. It has much wider powers to act if it finds a council has failed in its duties as a data controller. It can say if the Council is failing to disclose information Mr X is entitled to. This is not a decision the Ombudsman can take.
If Mr X was unhappy with the ICO’s response, he would have the option of taking the matter to court. This could give Mr X the outcome he wants, while an investigation by the Ombudsman could not. We will not therefore investigate.
Final decision
We will not investigate Mr X’s complaint because the Information Commissioner’s Office is the appropriate body to deal with his complaint.
Investigator's decision on behalf of the Ombudsman